6.   The first applicant was born in 1967 and at the time of the lodging of his application was detained in HM Prison Moorlands. He was expected to be released on 1 September 2010. The second applicant was born in 1978 and is currently detained in HM Prison Dovegate.
7.  The first applicant is a taxi driver. On 31 August 2006, he drove from Sheffield to Luton. On his way back to Sheffield from Luton, he was arrested in the context of a police investigation into the supply of unlawful drugs. He had been followed on his journey in both directions by police officers. Six kilograms of heroin were found in the boot of his car. The case against him was that he had collected the consignment of drugs in Luton and was transporting it back to Sheffield when he was arrested.
8.  The first applicant’s defence was that he did not know anything about the drugs found in his car. He said that he had taken a passenger named Paul with him on the journey from Sheffield to Luton at the request of Mr Younas, one of the alleged members of the conspiracy to supply unlawful drugs. Paul had used the first applicant’s mobile telephone while in the car and the calls to another of the individuals in the alleged conspiracy, Mr Rasul, had been made by Paul. Calls to Mr Younas and a third member of the alleged conspiracy, Mr N. Khan, were made by the first applicant: calls to Mr Younas were to check directions and calls to Mr N. Khan related to a dispute about an unpaid taxi fare. Paul had left the car shortly after arrival in Luton. The first applicant argued that he must have left the drugs in the car when he left the vehicle.
9.  In August 2006, the second applicant was charged with conspiracy to supply heroin. The case against him was that he was involved in making arrangements for the payment of the drugs to be transported from Luton to Sheffield. The prosecution relied on telephone analysis to establish a link between the second applicant and the other alleged conspirators. Cash amounting to GBP 18,955 was found in the second applicant’s cellar. The money had been in contact with heroin.
10.  The second applicant’s defence was that he was a cousin of Mr N. Khan and a friend of Mr Younas and was therefore in close contact with them. However, he had not taken part in the conspiracy. His telephone contacts with them on the relevant days had been innocent. The cash found at his home derived partly from the sale of a car and partly from former heroin dealings for which he had been convicted in 2003.
11.  The applicants were subsequently tried together on charges of conspiracy to supply heroin. The trial commenced on 3 January 2007 and the jury was sworn. On the following day the court heard evidence from the police officers who had followed the first applicant from Sheffield to Luton and back, one of whom was M.B. The police officers testified that the first applicant did not have a passenger with him at any point during that journey and that no-one had alighted from the vehicle in Luton.
12.  During the evidence of M.B., the first of the police officers to testify, one of the jurors, A.T., sent a note to the judge indicating that he, A.T., was a serving police officer and that he knew M.B., although he had not worked with him for two years. The judge read the note to counsel and agreed with them a series of questions to be put to A.T. The judge then questioned A.T. in the absence of the other jurors but in the presence of the applicants. A.T. confirmed that he was a police dog handler near Doncaster, some distance from Sheffield. He said that he had known M.B. for approximately ten years and that on three occasions they had worked on the same incident, although not in the same team. They had never worked at the same station and did not know each other socially. He was asked if he knew anything about M.B. which would affect his ability to judge M.B.’s evidence impartially or his ability to judge the case in accordance with the oath he had sworn. He replied that he did not.
13.  The defence made an application to the judge to discharge A.T. on the grounds that there was a conflict of evidence between the police and the first applicant which the jury would have to resolve, that it would therefore be unfair for the jury to include a police officer and that justice would not be seen to be done if the police officer continued to serve on the jury. They also argued that there was a risk that A.T. knew of the second applicant’s previous conviction for dealing in heroin. On 4 January 2007, setting out his decision on the application, the judge concluded that:
“Jurors are entitled, when called, to try the cases before them, and are not to be asked to withdraw ... unless there is a proper reason, one of which clearly concerns prejudice to an accused, or the appearance of any prejudice. I am wholly satisfied in this case that there is no prejudice to either defendant if this juror remains, nor indeed, if anyone were to hear his questioning, any appearance of unfairness. This is a juror who honestly and frankly has brought to the court’s attention his knowledge of a witness and, in answering the questions posed to him as he has, has clearly indicated that his knowledge is slight and, no matter what the extent of his knowledge, not something that will in any way adversely affect his judgment of this particular case.
... I appreciate that there is a conflict between the witness and the defendant, and that that is a conflict of some importance within the case but, in my judgment, this juror is well capable of dealing with the matter in a proper and impartial way.”
14.  The application to discharge A.T. was rejected. A.T. subsequently became the jury foreman.
15.  In the trial proceedings before the court, the prosecution relied on the fact that the other co-accused in the conspiracy had pleaded guilty in order to establish the existence of a conspiracy. They also relied on evidence of the second applicant’s bad character and previous conviction for dealing in heroin.
16.  The first applicant, in his defence, called a witness who testified that she had seen him leave Sheffield at the start of his journey with a passenger in the car.
17.  On 12 January 2007, the applicants were convicted of conspiracy to supply heroin. The first applicant was sentenced to eight years’ imprisonment. The second applicant was sentenced to 17 years’ imprisonment. This was to take place consecutively to a period of two years and five months’ imprisonment, the period outstanding under a previous conviction for supplying heroin in respect of which he had been released on licence.
18.  After the trial, the applicants’ counsel realised that A.T. had been involved in recent drugs operations in the area and had given evidence at other drugs trials in which counsel for the second applicant had appeared.
19.  The applicants applied for leave to appeal against their convictions on the ground that the presence of the police officer on the jury, and in particular his role as jury foreman, led to an appearance of bias in the trial proceedings. Leave to appeal was granted and the appeal was heard on 29 January 2008.
20.  Handing down its judgment on 14 March 2008, the Court of Appeal noted:
“10. Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:
i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so
ii) Would the fair minded observer consider that this may have affected the outcome of the trial?
If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.”
21.  The court referred to the recent change in the law which had allowed persons previously ineligible for jury duty, including police officers, to sit on juries (see paragraphs 38-42 below). However, it observed that the change had simply removed the automatic disqualification of such persons: disqualification was still possible on a case-by-case basis where the particular circumstances of the case were such as to suggest apparent bias.
22.  After considering the judgment of the House of Lords in Abdroikof and Others (see paragraphs 43-54 below) which concerned the compatibility of police officer jurors with Article 6 of the Convention, the court concluded on the general issue of bias:
“... the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror’s partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.”
23.  As to the applicants’ appeals, the court emphasised that there was no question of the juror having any connection with those responsible for the prosecution of the case. The investigation had been carried out by the Serious Organised Crime Agency without the involvement of local police forces. The prosecution was conducted by the Organised Crime Division of the Crown Prosecution Central Casework Directorate without contact with the local Crown Prosecution Service branch.
24.  The court set out the starting point for consideration of the applicants’ appeals as follows:
“If one starts, as one must, from the premise that police officers are not, by reason simply of their occupations, considered to be biased in favour of the prosecution, we do not consider that the fact that a police officer has taken part in operations involving the type of offence with which a defendant is charged, gives rise, of itself, to an appearance of bias on the part of the police officer. Most police officers are likely to have had experience of most of the common types of criminal offence, not least drug dealing. We do not consider that familiarity with the particular offence charged against an offender would lead the objective observer to suspect a police juror of bias.”
25.  As regards the first applicant, the court noted that three police officers, one of whom was M.B., gave evidence of keeping him under observation at different stages of his journey from Sheffield to Luton and that each of the officers said that he saw no passenger in the car. The court further noted that the challenge to the officers’ evidence was on the basis that it was inaccurate and that it was not suggested to the witnesses in cross-examination that their evidence was untruthful. It further observed that such a suggestion would not have been likely to be fruitful as the officers’ accounts were no doubt supported by contemporary records made at a time when they would have attached no significance to the fact that the first applicant had no passenger in the car. As to the witness called by the first applicant who spoke to glimpsing a passenger in the back of his car as it passed her in Sheffield, the court commented that she was not a witness of good character and that it was the prosecution case that she was not to be believed. It continued:
“54. Hanif’s explanation for the records of the use of his mobile phone and for being found with the heroin in the back of his car bordered on the farcical. The mobile phone records showed that, if his explanation was true, his phone must have been being passed to and fro between himself and his passenger like a yo-yo. Equally unlikely was the suggestion that the conspirators, Younas and [N. Khan], would have been having repeated telephone conversations with him about his taxi charges at a time when they were busy arranging for a drug delivery. Finally it is hard to believe that, if his passenger had been carrying a valuable consignment of heroin, he would have left it in the back of the taxi. 55. Quite apart from these matters, Hanif’s evidence had significant inconsistencies with earlier statements made to the police. It was the prosecution’s case that his evidence had been tailored to accommodate the police evidence. 56. In the light of these facts we turn to consider the two questions set out at paragraph 10 above. The material evidence of the three police witnesses was that they had seen no passenger in Hanif’s car. Insofar as there was an issue in relation to this evidence it was whether it was possible that there might have been a passenger unobserved by the police. As to that issue, the jury plainly concluded that it was not. No fair minded observer would believe, however, that this conclusion might have been brought about as a result of partiality on the part of the police juror to his fellow officers and, in particular, to [M.B.] who was known to him. Thus the question is answered in the negative and the second question does not arise.”
26.  The court accordingly concluded that the first applicant’s conviction was not rendered unsafe by the fact that the foreman of the jury was a police officer who was acquainted with M.B. and dismissed the first applicant’s appeal against conviction.
27.  The court also rejected the second applicant’s contention that, because of A.T.’s involvement in drugs operations, he might have become aware of the second applicant’s previous conviction for dealing in heroin, noting:
“49. ... there was nothing to support this surmise. Had the juror known anything about any of the defendants we think that he would clearly have made this fact known to the judge, as he did his knowledge of [M.B.]. Furthermore, Bakish Alla Khan’s previous conviction was placed before the jury.”
28.  The court observed that at trial there was no challenge to the prosecution evidence in respect of the second applicant and that no police witnesses were called. The issue was whether the jury was satisfied that the explanations advanced by the second applicant for the undisputed evidence were untrue and that this evidence demonstrated his guilt. The Court of Appeal considered that the jury’s verdict showed that it was satisfied of this. It therefore concluded that the allegation of jury bias made on behalf of the second applicant was not made out and dismissed his appeal against conviction.
29.  The Court of Appeal made the following concluding remarks:
“It is undesirable that the apprehension of the jury bias should lead to appeals such as those with which this court has been concerned. It is particularly undesirable if such appeals lead to the quashing of convictions so that re-trials have to take place. In order to avoid this it is desirable that any risk of jury bias, or of unfairness as a result of partiality to witnesses, should be identified before the trial begins. If such a risk may arise, the juror should be stood down.
We considered attempting to give guidance in this judgment as to the steps that should be taken to ensure that the risk of jury bias does not occur. However, it seems to us that these will involve instructions to be given by the police, prosecuting and prison authorities to their employees coupled with guidance to court officials. It would be ambitious to attempt to formulate all of this in a judgment without discussion with those involved. There is one matter, however, that should receive attention without any delay. It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is, or has been, a police officer or a member of the prosecuting authority, or is a serving prison officer. Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories, so that this information can be conveyed to the judge. We invite all of these authorities and Her Majesty’s Court Service to consider the implications of this judgment and to issue such directions as they consider appropriate.”
30.  The second applicant’s appeal against sentence was successful and the sentence of 17 years was reduced to 15 years.
31.  The applicants were refused leave to appeal to the House of Lords on 17 June 2008.